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Mohammad Shafi v. Gram Sabha
Judgment Summary — Satish Chandra, J. (Revision Dismissed)
Factual and Procedural Background
Gram Sabha, Bisauli (plaintiff) instituted a suit against Mohammad Shafi (defendant/applicant) for demolition of constructions made by him over plot No. 861 in village Bisauli and for possession of that plot. The Gram Sabha claimed ownership of the plot. The suit was dismissed on 9 December 1965 and the Gram Sabha filed an appeal.
During the pendency of the appeal, the State Government issued a notification dated 13 July 1966 under Sec. 3(1) of the U.P. Town Areas Act, 1914, declaring certain villages (including Bisauli) to be part of the Town Area Achhalda effective 15 July 1966 and listing plots included within the Town Area; plot No. 861 was included in that list. Thereafter the defendant, Mohammad Shafi, applied to have the suit dismissed on the ground that plot No. 861 was no longer the property of the Gram Sabha.
The Gram Sabha objected, contending that its rights in the plot continued to vest in it and the suit and appeal had not become infructuous. The Civil Judge, Etawah, dismissed Mohammad Shafi's application, holding that no notification under Sec. 117(6) of the U.P. Zamindari Abolition and Land Reforms Act had divested the Gaon Sabha of the plot, so its proprietary right continued and the suit/appeal were not infructuous. Mohammad Shafi filed the present revision against that order.
The Single Judge identified a conflict in authority on whether Order 22, Rule 10, C.P.C. could be extended to situations where interests vest in the State during litigation, and referred the question whether the Gaon Sabha could continue the appeal to a Division Bench.
Legal Issues Presented
- On the facts and law applicable, can the Gaon Sabha (Gram Sabha), whose territorial limits have been altered by inclusion of plot No. 861 within the Town Area Achhalda, continue the appeal pending in the Court below?
- What is the legal effect of transferring a particular area from the territorial limits of a Gaon Sabha to the territorial limits of another local authority (e.g., a Town Area) on the proprietary or vested rights of the Gaon Sabha in the land so transferred—specifically, whether such transfer automatically divests the Gaon Sabha of rights or requires a specific notification under the Zamindari Abolition Act?
- Whether Order 22, Rule 10, C.P.C. (continuance of suits/appeals by assignees pendente lite) applies where rights in the land have been transferred by operation of statute or notification to another local authority (statutory assignment), or where existing rights have been extinguished and fresh rights created under the Zamindari Abolition and related Acts.
Arguments of the Parties
Applicant / Defendant (Mohammad Shafi)
- Argued that once plot No. 861 was included within the territorial limits of Town Area Achhalda by the State notification (effective 15 July 1966), the plot was no longer the property of the Gram Sabha and the suit should be dismissed as infructuous.
- Before the Single Judge, it was contended that even if proprietary rights had vested in the Town Area, Order 22, Rule 10, C.P.C. would apply and the plaintiff would have a right to continue the suit (this was argued to show conflicting authority on the issue).
- Relied upon Rule 3-AAA (referred to as Rule S-AAA / 3-AAA in the opinion) framed under the Panchayat Raj Act, and urged (as described in the opinion) that under clause (b) of sub-rule (2) immovable property in plots transferred to a Town Area should belong to the Town Area; alternatively contended that Rule 3-AAA conflicted with Sec. 117(2) and/or was inapplicable because a Town Area is not a body corporate and not entitled to hold property.
Plaintiff / Gram Sabha (Gaon Sabha, Bisauli)
- Objected to the application, asserting that rights in plot No. 861 continued to remain vested in the Gaon Sabha and had not become vested in the Town Area Achhalda.
- Maintained that no notification under Sec. 117(6) (or under sub-secs. (2) or (3) as necessary) of the Zamindari Abolition Act had been issued to divest the Gaon Sabha of proprietary rights, and consequently the suit and appeal were not infructuous.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Salik Shukla v. Brij Nandan Misra, 1962 A.L.J. 1080 | Dhawan, J. held that Order 22, Rule 10, C.P.C. can be extended to cases where interests of the plaintiff vested in the State under the Zamindari Abolition Act during pendency of the suit. | The court noted this authority as part of a conflict of opinion but observed that Salik Shukla was not of statutory assignment character and therefore did not directly govern the present case. |
| Karan Singh v. Har Lal, Second Appeal No. 2008 of 1952 (decided Oct. 17, 1962) | A.P. Srivastava, J. held Order 22, Rule 10 allows an assignee to continue the suit but does not permit a plaintiff who has lost all rights to continue and obtain a decree when he has no right left. | The court recorded this contrary authority and treated it as part of the conflict; it ultimately distinguished this authority as not directly applicable because the present situation involved a statutory assignment (if transfer occurred) rather than extinguishment and creation of a different right. |
| Karka Somulu v. Reddy Appalanaidu, A.I.R. 1958 A.P. 507 | Applied in support of the proposition that where property belongs to another by statutory assignment, Order 22, Rule 10, C.P.C. may operate to permit continuation by the assignee. | The court referenced this case to show that if the property had belonged to the Town Area by statutory assignment, Order 22, Rule 10 would apply; however, the court found no such statutory notification in the instant case. |
| Joti Lal Sah v. Sheodhayan Prashad Sah, A.I.R. 1936 Patna 420 | Cited among authorities concerning assignment/transfer and continuance under procedural law (as cited in the opinion). | Referred to along with other authorities in the court's discussion of statutory assignment and the applicability of Order 22, Rule 10. |
| Rameshww v. Mst. Ganpati Devi, A.I.R. 1936 Lahore 652 | Tek Chand, J. (Division Bench) held that the "interest" in Order 22, Rule 10 is that of a person who was a party to the suit; the provision permits continuance on transfer of that interest pendente lite, not the creation of an independent right in a transferee. | The court relied on this principle to distinguish situations of extinguishment and fresh creation of rights (under the Zamindari Abolition Act) from statutory assignments to which Order 22, Rule 10 applies. |
| Town Area Committee Kora Jahanabad v. Rai Bahadur Adya Saran Singh, Second Appeal No. 1983 of 1962 (decided 1 April 1969) | Held (as noted in the opinion) that where the Gaon Sabha ceased (whole area included elsewhere), property would revert to the State and a transfer would be required by the State. | The court distinguished that decision: it may apply where the entire territory of a Gaon Sabha is transferred and the Gaon Sabha ceases, but does not govern situations where only part of the Gaon Sabha's area is transferred; in those cases the Gaon Sabha's rights continue. |
Court's Reasoning and Analysis
The Bench identified the central legal question as the effect of transferring a particular area from a Gaon Sabha to another local authority on the Gaon Sabha's proprietary rights in the land so transferred. The court's analysis proceeded by reference to the statutory scheme in the U.P. Panchayat Raj Act, 1947 and the U.P. Zamindari Abolition and Land Reforms Act.
Key statutory provisions examined and their import in the court's reasoning:
- Sec. 4 and Sec. 34, U.P. Panchayat Raj Act: Gaon Sabha is a body corporate and "all public property situated within the jurisdiction of a Gaon Sabha shall vest in and belong to the Gaon Sabha" and be under its control.
- Sec. 8, U.P. Panchayat Raj Act: if part of a Gaon Sabha is included in a municipality, cantonment, notified area, or town area, the Gaon Sabha's jurisdiction is reduced by that part; if the whole is included the Gaon Sabha shall cease and its assets and liabilities shall be disposed of as prescribed.
- Sec. 4 and Sec. 6, U.P. Zamindari Abolition Act: all estates vested in the State; intermediaries' interests extinguished and certain rights re-conferred. Sec. 117 specifically provides for vesting of certain lands and other things in Gaon Sabhas or other local authorities by notification in the Gazette.
- Sec. 117(1)-(6): authorises the State Government to declare by notification things which vested in the State shall vest in a Gaon Sabha or other local authority, to declare re-vesting in another authority, and to amend or cancel such notifications; Sec. 117(2) and (6) make clear that vesting in another local authority or resumption by the State is effected by Gazette notification and is not automatic upon alteration of territorial limits.
- Sec. 117(3): authorises extra-territorial performance by a Gaon Sabha of functions in relation to property vested in it even if the village or part lies outside its circle; this reinforces that vesting and functional control can persist despite territorial adjustments unless the State declares otherwise.
Applying these provisions to the facts, the court reasoned that:
- Plot No. 861 had been vested in the Gaon Sabha, Bisauli, under Sec. 117(1) at a time when it lay within the Gaon Sabha's territorial limits.
- The inclusion of that plot within the Town Area Achhalda's territorial limits by the notification under the Town Areas Act did not, by itself, operate to divest the Gaon Sabha of its vested proprietary rights in that plot. Sub-sec. (2) of Sec. 117 requires a notification in the Gazette declaring vesting in another local authority for such rights to be transferred.
- There was no notification under Sec. 117(2), Sec. 117(3) or Sec. 117(6) divesting or resuming the Gaon Sabha's proprietary rights in plot No. 861. Therefore the proprietary rights remained vested in the Gaon Sabha.
- The court examined Rule 3-AAA of the Rules framed under the Panchayat Raj Act (which purportedly allocates immovable property to the local body in which the land falls when part of a Gaon Sabha area is included in another local body). The court held that, even if that Rule were invalid or inapplicable, such invalidity would not ipso facto divest the Gaon Sabha of its rights; a void or inapplicable rule would not operate as a statutory resumption or re-vesting by the State under Sec. 117.
- Regarding Order 22, Rule 10, C.P.C., the court analysed conflicting authorities. It observed that where there is a statutory assignment of interest to another authority (i.e., a transfer effected by statute or valid notification), Order 22, Rule 10 can apply enabling the assignee to continue the suit/appeal. However, where pre-existing rights were extinguished and fresh independent rights created (as under some applications of the Zamindari Abolition Act), the doctrine underpinning Order 22, Rule 10 would not necessarily permit the original party to obtain a decree in respect of rights he no longer possesses.
- On the present facts, because no statutory notification had divested the Gaon Sabha of plot No. 861, the Gaon Sabha's vested rights continued; consequently, it was competent for the Gaon Sabha to continue the appeal and the Civil Judge's rejection of the applicant's dismissal application was justified.
Holding and Implications
Holding: The revision is dismissed. The court held that, in the absence of any notification under Sec. 117(2), Sec. 117(3) or Sec. 117(6) of the U.P. Zamindari Abolition and Land Reforms Act divesting or resuming the proprietary rights of the Gaon Sabha in plot No. 861, those rights continued to vest in the Gaon Sabha, Bisauli. Therefore the Gaon Sabha was entitled to continue the appeal; the Civil Judge was justified in rejecting the defendant-applicant's application. The revision was dismissed with costs.
Implications:
- Direct effect on the parties: The Gaon Sabha retains its proprietary rights in plot No. 861 and may pursue its appeal; the defendant's application to dismiss the suit/appeal on the ground of transfer to the Town Area fails.
- Legal consequence emphasized by the court: Mere alteration of territorial limits (inclusion of part of a Gaon Sabha's area in a Town Area) does not automatically divest the Gaon Sabha of vested property rights; a statutory notification under the Zamindari Abolition Act (Sec. 117 series) is required to effect vesting or resumption.
- The court distinguished conflicting authority on Order 22, Rule 10, C.P.C., and explained that the applicability of that provision depends on whether there has been a statutory assignment of the interest (to which it can apply) or an extinguishment and creation of fresh rights (to which it may not). The opinion clarified how Order 22, Rule 10 relates to statutory assignments but did not purport to lay down a new general rule beyond the statutory context before it.
- No indication was given in the opinion that a new broad precedent beyond the statutory interpretation and the decision in this case was intended to be established; the ruling is applied to the present factual and statutory matrix described above.
Disposition: Revision dismissed (with costs).
Satish Chandra, J.:— This is defendant's revision. Gram Sabha, Bisauli, District Etawah, instituted a suit against the applicant, Mohammad Shafi, for demolition of certain constructions made by him over plot No. 861 situate in village Bisauli, and for possession of the plot. The Gram Sabha claimed to be the owner of this plot. The suit was dismissed on 9th December, 1965. The Gram Sabha filed an appeal. During the pendency of the appeal, the State Government issued a notification on 13th July, 1966, under Sec. 3(1), U.P Town Areas Act, 1914. The notification stated that for the application of the provisions of the U.P Town Areas Act, 1914, the Governor was pleased to declare the villages Achhalda, Bisauli and Bodepur, to be the Town Area Achhalda with effect from 15th July, 1966. The Notification gave a list of the plots of these villages which were included within the territorial limits of the Town Area. Plot No. 861 of village bisauli was included in it. So, with effect from 15th July, 1966, plot No. 861 of village Bisauli became included in the territorial limits of the Town Area, Achhalda. Thereafter, the defendant. Mohammad Shafi filed an application, praying that the suit be dismissed, because plot No. 861 was no longer the property of the Gram Sabha. The Gram Sabha filed an objection, stating that the rights in this plot continued to remain vested in it. They have not become vested in the Town Area, Achhalda. The suit as well as the appeal have not become infructuous. The learned Civil Judge, Etawah, held that the plot in dispute had been vested by the State Government in the Gaon Sabha, Bisauli. No notification divesting the Gaon Sabha of this plot has been issued by the State Government under Sec. 117(6), U.P Zamindari Abolition and Land Reforms Act. So long as such a notification is not issued, the proprietary right of the Gram Sabha in this plot shall continue. The suit and the appeal have, therefore, not become infructuous. The application of Mohammad Shafi was dismissed. Aggrieved at this order, Mohammad Shafi has filed the present Revision.
2. The Revision came up for hearing before a learned Single Judge. Before him, it was contended that even if the proprietary rights in the plot in dispute have become vested in the Town Area, Achhalda, Order 22, Rule 10. C.P.C would apply, and the plaintiff has a right to continue the suit. On this point, the learned Single Judge found a conflict of opinion. In Salik Shukla v. Brij Nandan Misra . 1962 A.L.J 1080., Dhawan, J. held that the principle of O. 22, R. 10, C.P.C, can be extended to a case in which the interest of the plaintiff have vested in the State under the U.P Zamindari Abolition and Land Reforms Act, during the pendency of the suit. A.P Srivastava, J., has, on the other hand, taken a contrary view in Karan Singh v. Har Lal . Second Appeal No. 2008 of 1952, decided on October 17, 1962.. He held that Order 22, Rule 10 only allow an assignee of the plaintiff to continue the suit. It does not lay down that if the plaintiff has lost rights, it is still open to him to continue the suit and to get a decree, even if he has no right left, on the basis of which he can get it. In cases where the plaintiff has to establish his title in order to save himself from damages or refund of consideration, it may be permissible for him to continue the suit after impleading the assignee. But, when the rights of the plaintiff have come to an end altogether and have vested in the State, a decree in favour of the plaintiff cannot be maintained. A decree cannot be passed in favour of a person, who has no right to get it. In order to settle this conflict the learned Judge referred the following question to a Division Bench—
“On the facts of the present case and the law applicable thereto, can the Gaon Sabha continue the appeal pending in the Court below?”
3. That is how the matter has come before this Bench. The main question is what is the effect of the transfer of a particular area from the territorial limits of a Gaon Sabha to the territorial limits of any other local authority, upon the property rights of the Gaon Sabha in the land so transferred? In our opinion, the answer to this question depends upon the effect of the provisions of the U.P Panchayat Raj Act, and the U.P Zamindari Abolition and Land Reforms Act.
4. The U.P Panchayat Raj Act, 1947, was enacted to establish and develop local self-government in the rural areas of Uttar Pradesh. The State Government was to delimit the territorial jurisdiction of the Gaon Sabhas. Under Sec. 4, Gaon Sabha is a body corporate, having power to acquire and transfer property, movable and immovable. Sec. 8 provided:—
“8. Effect of change in population or inclusion of the area of a Gaon Sabha in Municipalities, etc.— If the whole of the of Gaon Sabha is included in a municipality, cantonment, notified area, or town are, the Gaon Sabha shall cease, and its assets and liabilities shall be disposed of in the manner prescribed. If a part of such area is so included, its jurisdiction shall be reduced by that part.”
5. In the present case, some of the plots included in territorial limits of the Gram Sabha. Bisauli, have been included in the territorial limits of the Town Area Achhalcla. So, the Gram Sabha, Bisauli did not cease to exist, but its jurisdiction was excluded in relation to such plots.
6. Section 34 of the Panchayat Raj Act provides—
“34. Property vested in the Gaon Sabha— (1) Subject to any special reservation made by the State Government, all public property situated within the jurisdiction of a Gaon Sabha shall vest in and belong to the Gaon Sabha and shall, with all other property which may become vested in the Gaon Sabha be under its direction, management and control.
(2)…………………………………………………….”
7. Under this provision, all public property situated within the jurisdiction of a Gaon Sabha shall vest in and belong to it. Similarly, all other property, which may become vested in the Gaon Sabha, shall also belong to it, and be under its direction, management and control.
8. Under Sec. 4, U.P Zamindari Abolition and Land Reforms Act, all estates situate in Uttar Pradesh vested in the State Free from all encumbrances. Under Sec. G of this Act, all rights, title and interest of all the intermediaries shall cease and be vested in the State free from all encumbrances. Sec. 117 of this Act provided for vesting of certain lands, etc., in Gaon Sabhas and other local authorities. It states—
“Sec. 117. Vesting of certain lands, etc., in Gaon Sabhas and local authorities. (1) At any time after the publication of the notification referred to in Sec. 4, the State Government may, by notification in the Gazette, declare that as from a date to be specified in this behalf, all or any of the following things, namely—
(i) lands, whether cultivable or otherwise, except lands for the time being comprised in any holding or grove,
(ii) forests,
(iii) trees, other than trees in a holding or on the boundary of a holding or in a grove or abadi,
(iv) fisheries,
(v) hats, bazars and melas, except hats, bazars and melas held on lands to which the provisions of clauses (a) to (c) of sub-sec. (1) of Sec. 18 apply or on sites and areas referred to in Sec. 9 and (vi) tanks, ponds, private ferries, water channels, pathways and abadi sites, which had vested in the state under this Act shall vest in the Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate, or partly in one such local authority (including a Gaon Sabha) and partly in another:
9. Provided that it shall be lawful for the State Government to make the declaration aforesaid subject to such exceptions and conditions as may be specified in the notification.
(2) Notwithstanding anything contained in this Act or in any other law for the time being in force, the State Government may by notification in the Gazette, declare that as from a date to be specified in this behalf, all or any of the things specified in clauses (i) to (vi) of sub-sec. (1) which after their vesting in the State under this act had been vested in a Gaon Sabha or any other local authority, either under this Act or under Sec. 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, shall, vest in any other local authority including a (Gaon Sabha) established for the whole or part of the village in which the said things are situate.
(3) Where any declaration has been made under sub-sec. (1) or sub-sec. (2) vesting any of the things specified in clauses (i) to (vi) of sub-sec. (1) in any Gaon Sabha, and the villages or the part of the village in which that thing is situate lies outside the circle of the Gaon Sabha, such Gaon Sabha or its Land Management Committee shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P Panchayat Raj Act, 1947 on a Gaon Sabha or a Land Management Committee, as the case may be as if that village or part of village also lay within that circle.
(4) Where a declaration has been made under sub-sec. (1) or sub-sec. (2) vesting of any of the things specified in clauses (i) to (vi) of sub-sec. (1) in a local authority other than a Gaon Sabha and the village or the part of the village in which the thing is situate is outside the limits of such local authority, or where after any declaration is made under sub-sec. (1) or sub-sec. (2), the thing vests or, as the case may be, had vested in a Nagar Mahapalika under Sec. 126 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959, such local authority shall in respect of that thing perform, discharge and exercise the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P Panchayat Raj Act, 1347 on a Gaon Sabha or a land Management Committee:
10. Provided that the local authority shall in the performance, discharge and exercise of its functions, duties and powers under this sub-section follow such procedure as may be prescribed.
(5) Where any of the things specified in clauses (i) to (vi) of sub-sec. (1) is vested in a local authority other than a Gaon Sabha the provisions of Secs. 126 and 127 shall, subject to such exceptions and modifications, if any, as the State Government may specify in this behalf by notification in the Gazette, apply, mutatis mutandis, to such local authority.
(6) The State Government may at any time, by notification in the Gazette, amend or cancel any declaration or notification made in respect of any of the things aforesaid, whether generally or in the case of any Gaon Sabha or other local authority, and resume such thing, and whenever the State Government so resumes any such thing, the Gaon Sabha or other local authority, as the case may be, shall be entitled to receive and be paid compensation on account only of the development, if any, effected by it in or over that thing;
11. Provided that the State Government may after such resumption, make a fresh declaration under sub-sec. (1) or sub-sec. (2) vesting the thing resumed in the same or any other local authority (including a Gaon Sabha), and the provisions of sub-secs. (3), (4) and (5), as the case may be, shall mutatis mutandis, apply to such declaration.”
12. Section 117-A made further provisions for exercise of extra-territorial jurisdiction by Gaon Sabha or other local authority. It states:—
“117-A. Further provision for exercise of extra-territorial jurisdiction by Gaon Sabha or other local authority. (1) where—
(a) any village or part of a village situated within the circle of a Gaon Sabha is included after the 7th day of July, 1949 within the limits of any other local authority (not being a Gaon Sabha); or
(b) any village or part of a village situated within the limits of any other local authority (not being a Gaon Sabha) is after the 7th day of July, 1949, included within the circle of a Gaon Sabha; or
(c) any of the things specified in clauses (i) to (vi) of sub-sec. (1) of Sec. 117 is vested under that section in any Gaon Sabha or other local authority within whose local limits it does not lie,—
then the State Government may, by notification, in the Gazette, direct that in relation to the holding area within any such village or part thereof or, in the case of clause (c) within the remainder of the village or part thereof to which the thing referred to in that clause appertains, such Gaon Sabha or its Land Management committee or other local authority as may be specified in the notification shall perform, discharge and exercise, subject to such exceptions, conditions and modifications, if any, as may be specified in this behalf, the functions, duties and powers assigned, imposed or conferred by or under this Act or the U.P Panchayat Raj Act, 1947 on a Gaon Sabha or Land Management Committee.
(2) Any Gaon Sabha or other local authority performing, discharging, or exercising any of the functions, duties or powers of the nature referred to in sub-sec. (1) in relation to any area or thing referred to therein on the day immediately before the Commencement of the Uttar Pradesh Land Laws Amendment Act, 1965, shall continue to perform, discharge or exercise such functions, duties or powers until any modification or annulment is made in respect thereof by notification under the said sub-section.
(3) The provisions of this section shall be in addition to and not in derogation of anything contained in sub-secs. (3) to (6) of Sec. 117.”
13. In view of sub-sec. (3), it is clear that the provisions of Sec. 117-A are not in derogation of anything contained in sub-secs. (3) to (6) of Sec. 117. In other words, sub-secs. (3) to (6) of Sec. 117 shall prevail notwithstanding anything contained in Sec. 117-A.
14. Under Sec. 117, the State Government can vest in a Gaon Sabha lands whether cultivable or otherwise, which are not, for the time being, comprised in any holding or grove. This vesting has to be done by a notification in the Gazette. It is admitted between the parties that plot No. 861 was so vested in the Gaon Sabha, Bisauli. This plot was, at that time, situate within the territorial limits of Gaon Sabha, Bisauli. The vesting thus came under Sec. 117(1). Under sub-sec. (2) of Sec. 117, the State Government has been authorised to declare, by a notification, that land, which has been vested in a Gaon Sabha, shall vest in any other local authority (including a Gaon Sabha) established for the whole or part of the village, in which such land was situate. Thus, the Government can, by a notification, declare that plot No. 861 shall vest in a local authority or a Gaon Sabha other than Gaon Sabha, Bisauli, provided such other local authority or Gaon Sabha was established for the whole or part of the village in which this plot was situate. The town Area, Achhalda, was established for a part of the village Bisauli, in which this plot was situate. Hence, the State Government could have, by a notification in the Gazette, declared that the rights in this plot would vest in the Town Area, Achhalda. But, no such notification has been made.
15. Sub-see. (2) of Sec. 117 clearly points that the mere change in the territorial limits of a Gaon Sabha by transferring particular areas from the territorial limits of the Gaon Sabha to the territories of any other local authority (including a Town Area) would not automatically divest the Gaon Sabha of the tilings specified in clauses (i) to (vi) of sub-sec. (1) (Like lands, forests, fisheries hats, bazars, etc.). The rights in such things would stand diverted transferred only if a notification in the Gazette declaring such divesting, and vesting in the Town Areas, is published. Since no such notification was made by the State Government, the rights in plot No. 861, which was vested in the Gaon Sabha, Bisauli, continued to remain so vested, and would not vest in the Town Area, Achhalda.
16. In this connection, reliance was placed upon Rule S-AAA of the Rules framed under the Panchayat Raj Act. This Rule provides that if the whole of the area of a Gaon Sabha is included in a Municipality, cantonment, notified area or Town Area, the Gaon Sabha shall cease and its assets and liabilities shall be transferred to the local body in which such area is included. Sub-Rule (2) deals with a situation when only a part of the Area is so included. Clause (a) of sub-sec. (2) provides that the funds, properties and liabilities shall be divided between the Gaon Sabha and the local body in which a part of its area has been included on the basis of population. Clause (b) then says that the immovable property shall belong to the Gaon Sabha or the local body, in which the area, on which it exists, falls, as the case may be, and its value shall not be taken into account in dividing cash money. Thus, under this Rule, the immovable property in a plot of land transferred from the Gaon Sabha to the Town Area, shall belong to the Town Area. This would suggest that the transfer of rights in such land takes place by force of this Rule automatically, without any action or order of any authority. The learned counsel for the applicant urged that this Rule was void, because it was in conflict with sub-sec. (2) of Sec. 117, Zamindari Abolition Act; and, in the alternative, this Rule will not apply in a case of Town Area, because Town Area is, in view of the provisions of the Town Areas Act, not a body corporate. It was not entitled to hold property. Consequently, no Rule could provide that an immovable property shall belong to a Town Area. It is unnecessary to examine these contentions, because, even if it is assumed that the immovable property of the Gaon Sabha in the Area transferred to the Town Area does not stand transferred to the Town Area, the applicant's case will not improve. This, like a void transfer of property, would not, ipso facto, mean divesting the property rights of the Gaon Sabha. Rule 3-AAA does not provide that the situation obtaining under sub-sec. (2) of Sec. 117 would remain, if clause (b) of sub-rule (2) of Rule 3-AAA were held invalid or inapplicable. On the other hand, if it is held that the property in the plot in dispute belonged to the Town Area, then it will be a case of statutory assignment, to which Order 22, Rule 10, C.P.C, does apply, as held in Karka Somulu v. Reddy Appalanaidu . A.I.R 1958 A.P 507., Rai Charan Mandal v. Bishwanath, 4 Joti Lal Sah v. Sheodhayan Prashad Sah . A.I.R 1936 Patna 420.. From that point of view, the decision of Dhawan, J. in Salik Shukla's case and of A.P Srivastava, J., in Karan Singh's case would really not apply to the instant case. Those cases were not of statutory assign ments. Under the Zamindari Abolition Act, the existing rights of all persons were extinguished. The other provisions of the Act then conferred fresh rights of a different character on the occupants and other persons connected with the land. This is not a case of statutory transfer. In Rameshww v. Mst. Ganpati Devi . A.I.R 1936 Lahore 652., Tek Chand, J., speaking for the Division Bench, held that interest referred to in Order 22, Rule 10 is the interest of a person who was a party to the suit. Under this provision, it is the transfer by assignment, creation or devolution pendente lite of the interest of such a person to another which entitles the latter to make an application to continue the suit or appeal, and not the creation of an independent right in him. Under the Zamindari Abolition Act, the preexisting rights were extinguished, and different kinds of rights were created. This was not a case of statutory assignment, but of the creation of fresh and independent rights. In the present case, whatever rights belonged to the Gaon Sabha in virtue of Sec. 34 of the U.P Panchayat Raj Act read with Sec. 117 of the U.P Zamindari Abolition and Land Reforms Act, stood transferred to the Town Area under Clause (b) of sub-rule (2) of Rule 3-AA. Under Sec. 34, the property belonged to the Town Area. The same stood transferred to the Town Area. There was no change in the nature, or quality or quantum of the rights. This is a case of assignment of the interest. Since it has been effected by force of a statutory rules, the assignment is staturoy, to which Order 22, Rule 10, C.P.C will apply. The question whether Order 22, Rule 10 will apply to cases of extinguishment of interest and creation of a fresh and independent rights, upon which there was a conflict of opinion between Dhawan, J., and A.P Srivastava, J., does not really arise in the present case.
17. Sub-sec. (3) of Sec. 117, U.P Zamindari Abolition Act expressly provides for extra-territorial vesting of property. Under it, if a declaration has been made vesting lands in a particular Gaon Sabha, and the village or part of the village in which such land is situate, falls outside the circle of the Gaon Sabha, even then, such Gaon Sabha is entitled to perform, discharge and exercise functions, duties and powers assigned by the Zamindari Abolition Act, or the Panchayat Raj Act on a Gaon Sabha, as if the village or part of the village ray within that circle. Thus, even though a particular plot of land may go outside the territorial limits of a Gaon Sabha, yet the Gaon Sabha is entitled to continue to perform, discharge or exercise the functions, duties and powers under the mentioned Act, in spite of such transfer on the footing that part of the village lay within its circle. So, so long as the State Government does not make a declaration transferring the rights in a particular plot as well as the powers and unctions in relation to that land to another local body, the pre-existing Gaon Sabha would continue to exercise its rights and perform its functions, as previously. Mere transfer of the territory from a Gaon Sabha to a Town Area will not divest the Gaon Sabha of its rights in such lands. Under sub-sec. (6), the State Government can at any time amend or cancel any declaration or notification made in respect of any of the thing mentioned in sub-sec. (1), including lands, and resume such things, and, on such resumption, the Gaon Sabha is entitled to be paid compensation on account of developments, if any, effected by it on the land. This will show that the resumption by the State Government is not automatic. It can be brought about only by a notification in the Gazette.
18. Our attention was invited to the decision of R.B Misra, J., in Town Area Committee Kora Jahanabad v. Rai Bahadur Adya Saran Singh . Second Appeal No. 1983 of 1962, decided on 1st April, 1969., where it was held that the moment the Gaon Sabha ceased, the property would revert back to the State, from whom it had come to the Gaon Sabha, and a transfer would, therefore, have to be made by the State. This proposition may apply where the entire territories of the Gaon Sabha are transferred with the result that the Gaon Sabha ceased, but, we are unable to hold that the same consequence would follow where only a part of the area of the Gaon Sabha is transferred to a Town Area or any other local body. In such a case, the existing rights of the Gaon Sabha in the land would continue to remain vested in the Gaon Sabha.
19. In the present case, there was no notification either under sub-sec. (3) or sub-sec. (6) of Sec. 117, Zamindari Abolition Act, divesting or resuming the property rights of the Gaon Sabha in plot No. 861. Consequently, the rights, which were vested in the Gaon Sabha, Bisauli, continued to vest in it. It was, therefore, competent to continue the appeal. The learned Civil Judge was justified in rejecting the application of the defendant-applicant. The revision has no merits, and is accordingly dismissed with costs.
20. Revision dismissed.
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